On 30 July 2018, the Government announced a review of the Modern Slavery Act 2015 (MSA) to be led by Frank Field MP, Baroness Butler-Sloss, and Maria Miller MP. In the announcement, it was stated that modern slavery is a horrendous crime, causing harm that can be compared to homicide, and that it is very costly for the authorities that have to investigate and prosecute the perpetrators, and support the victims. Baroness Butler-Sloss stated that the MSA is a ‘splendid piece of legislation’. A series of reports and analyses of the MSA, though, including a Report of the National Audit Office of December 2017, paint a far less flattering picture of the Act and the Government’s broader approach towards modern slavery. Three years after the enactment of the MSA is a good time to take stock.

Photo by Kalayaan

A splendid piece of legislation?

We often read in the press heart-breaking stories of workers – particularly migrant workers – who are seriously exploited and abused by unscrupulous employers. The MSA was enacted to tackle human trafficking and other instances of severe labour exploitation, such as these. At the time of its enactment, the then Home Secretary, Theresa May, described it as a ‘historic milestone’ that ‘sends the strongest possible signal to criminals that if you are involved in this vile trade you will be arrested, you will be prosecuted and you will be locked up. And it says to victims, you are not alone – we are here to help you’. This kind of rhetoric was frequently used thereafter. How successful has the Act been?

Let us start with the offences that the MSA includes. These appear under the headings of first, slavery, servitude, forced and compulsory labour; and second, human trafficking. These offences were not enacted for the first time in the MSA. The Act codified and consolidated existing offences, and increased sentences for the most serious offenders. It is an improvement on what preceded it, for simplifying and bringing together pre-existing offences in one piece of criminal legislation. The criminalisation of severe labour exploitation was driven partly by judgments of the European Court of Human Rights (ECtHR), such as Siliadin v France and CN v UK (on labour exploitation of migrant domestic workers), and Rantsev v Cyprus and Russia (on sex trafficking), which examined claims under article 4 of the European Convention on Human Rights (prohibition of slavery, servitude, forced and compulsory labour). The ECtHR imposed on state authorities several positive obligations, including substantive obligations to criminalise, and procedural obligations to investigate and prosecute instances of slavery, servitude, forced and compulsory labour.

In addition to the substantive offences, other provisions of the MSA include the confiscation of the assets of those who commit modern slavery crimes; the introduction of a series of orders, such as slavery and trafficking reparation orders against those convicted and against whom a confiscation order is made; the creation of a new institution, the Independent Anti-Slavery Commissioner; a section on migrant domestic workers; and a provision on transparency in supply chains.

The stated purpose of the MSA consisted of facilitating the work of prosecutors and the police with regard to modern slavery, and increasing the rates of prosecutions, which were viewed as low. Did it succeed in its aim to increase prosecutions? And how does it fare on victim support?

Prosecutions and victim support

It is hard to have an accurate picture of the crime of modern slavery. Serious exploitation of workers is frequently hidden in private households; the victims, often migrants, are fearful of the authorities because of the possibility of arrest and deportation. The question of whether the MSA succeeded in increasing prosecutions can best be answered if we consider the numbers of victims of modern slavery that are referred to the National Referral Mechanism (NRM), an administrative system through which victims are identified and registered (and which has also been much criticised). Between 2015-2016, there were 3,146 NRM referrals. In 2016 there were just 80 prosecutions under the MSA, rising from 26 prosecutions in 2015. In 2017, there were 5,145 NRM referrals, while in 2017-2018, there were just 239 prosecutions. These numbers reveal that even though there is an increase in prosecutions every year, there is still a great mismatch between NRM referrals, on the one hand, and prosecutions, on the other. This issue was highlighted in a National Audit Office report on the Modern Slavery Strategy, which also criticised the Home Office for not having a complete picture of the crime of modern slavery, the victims and the perpetrators, or an effective system to track any progress. In October 2017, a police watchdog, Her Majesty’s Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS), produced a report which was highly critical of the police response to modern slavery. This was due to a number of reasons, including a lack of understanding of the issue, ineffective investigations, and the frequency with which victims were referred to immigration authorities instead of being provided with support. It can therefore be said that the enactment of the MSA meets the substantive requirement under the ECHR to criminalise severe labour exploitation, but not the procedural requirements to investigate and prosecute effectively.

Victim support through the MSA has also been disappointing. This is because criminalisation of modern slavery has not been accompanied by the enactment of suitable civil remedies for victims. During the passage of the MSA, the Government rejected as unnecessary a proposal to introduce a general civil remedy, stating that the existing civil remedies in tort would be sufficient for victims of modern slavery. Torts, such as intimidation, harassment, assault and false imprisonment, were said to constitute adequate grounds for compensation, making a general civil remedy under the MSA redundant. It is puzzling that the Government recognised the grave moral wrong of severe labour exploitation by introducing a crime, but rejected proposals to introduce a general civil remedy that would mirror the gravity of the particular crime in the area of victims’ compensation, and opted to refer to remedies available for other wrongs, that do not fit the same circumstances as modern slavery.

Although there is no general civil remedy under the MSA, section 8 provides that the court can compensate victims by making a slavery and trafficking reparation order, if the perpetrator is convicted and a confiscation order is made against him or her. The court must consider making this reparation order even if the prosecution has not requested it, and must also give reasons if it decides not to make such an order. Yet these remedies were said to be of limited significance in the UK Supreme Courtcase of Taiwo and Onu that involved the exploitation of migrant domestic workers. The claim that reached the Supreme Court, and failed, involved race discrimination. Against this background, Baroness Hale pointed towards the shortcomings of remedies under section 8 of the MSA:

Parliament may well wish to address its mind to whether the remedy provided by section 8 of the Modern Slavery Act 2015 is too restrictive in its scope and whether an employment tribunal should have jurisdiction to grant some recompense for the ill-treatment meted out to workers such as these, along with the other remedies which it does have power to grant.

Access to compensation for victims of modern slavery is important. It can empower them economically, support their societal reintegration, minimise their vulnerability to being re-trafficked and provide them with a sense of justice, as was emphasised in a report by FLEX. The MSA has failed on this front too.

Criminalisation and severe labour exploitation

The low numbers of prosecutions, and the inadequate remedies for the victims are not the only problems of the MSA. There is also a broader issue that has to be highlighted: this is the use of criminalisation alone as a way to address severe labour exploitation.

It is important to appreciate that the MSA, particularly if considered against the broader legislative framework, exhibits a striking lack of political will to tackle labour exploitation. This is for numerous reasons. First, it focuses on the most serious forms of labour exploitation and on individual responsibility. A consequence of the exclusive focus on severe exploitation is that the MSA risks obscuring the moral wrong of labour exploitation, which should not be viewed as confined to instances of modern slavery. Exploitation of a worker occurs when an employer takes advantage of the worker’s vulnerability. A worker’s vulnerability may be due to individual or structural factors. However, the MSA and the surrounding political debate turn a blind eye to the structural factors that create vulnerability to exploitation. This also obscures the fact that there are sometimes legal structures that create vulnerability to exploitation, as I explain in a piece forthcoming in this book. This occurs, perhaps as an unintended consequence of laws with a prima facie legitimate aim, when the state explicitly excludes workers from protective rules or when it creates a legal framework that leads to this situation, and the state knows or ought to have known of the vulnerability and the exploitation, or the immediate risk of exploitation.

The MSA did not take the opportunity to address legal structures that create vulnerability to exploitation, even though there were opportunities to do so. This can be best illustrated by the visa of migrant domestic workers, which became a central political issue during the passing of the MSA. Since 2012, when migrant domestic workers arrived lawfully in the country accompanying an employer, their visa status tied them to this employer. Their residency status was lawful only for as long as the employer with whom they entered employed them, to a maximum of six months. The six-month period was not renewable. From an empirical study that I conducted, it emerged that workers under this visa are trapped in ongoing cycles of exploitation. However, proposed amendments that would guarantee an unconditional right to change employer through the MSA were rejected. On the basis of section 53 of the MSA, and some subsequent changes through the Immigration Act 2016, only migrant domestic workers who are conclusively recognized as victims of human trafficking through the NRM have the right to stay in the UK as a domestic worker for up to 2.5 years. This very limited change can be criticised on many grounds, such as the fact that domestic workers will be reluctant to leave abusive employers if there is no certainty that they will have a right to stay in the UK.

Second, the broader legislative framework lends additional support to the argument that there is no political will to address structures that create vulnerability to exploitation. This is evident in the Immigration Act 2016. The Immigration Act contains an offence of illegal working, which applies to a person subject to immigration control who works, when that person knows or has reasonable reason to believe that he or she is not entitled to work because of his or her immigration status. This offence also opens the door for confiscation of any wages paid to undocumented workers under the Proceeds of Crime Act 2002. Measures such as these that target undocumented migrant workers suggest that concerns over immigration far outweigh concerns over labour exploitation.

Conclusion

The MSA has other weaknesses too, which cannot all be discussed in this short blog post. Section 54 on modern slavery in supply chains, for instance, is disappointing and has shortcomings both in the design of the system and its implementation, as has been highlighted in reports, such as this. In addition, the first Independent Anti-Slavery Commissioner, Kevin Hyland OBE, resigned in May 2018. His resignation letter stated: ‘At times independence has felt somewhat discretionary from the Home Office, rather than legally bestowed’. This appears to reinforce and add to the concerns about the robustness of the current regime discussed above.

The MSA can be welcomed for being an improvement on what pre-existed it, but it is by no means a splendid piece of legislation. The criminalisation of severe labour exploitation has to be accompanied by effective mechanisms of enforcement of the laws. Most importantly, further measures are necessary that protect workers’ rights and support victims of violations, instead of setting up structures that create further vulnerability to exploitation. On this issue, a change in the visa of migrant domestic workers along the lines suggested in the Report of James Ewins QC (an unconditional right to change employer, and a visa for 2.5 years) would be a good starting point. Without such protective structural measures we have to question just how genuine the Government’s commitment to tackling modern slavery is.

About the author: Virginia Mantouvalou is Professor of Human Rights and Labour Law at UCL, Faculty of Laws, and Co-editor of the UK Labour Law Blog.

This blog post is based on her article ‘The Modern Slavery Act Three Years On’, which is forthcoming in the Modern Law Review, November 2018.